Working beyond ‘normal’ hours – what is reasonable and the ‘right to disconnect’

In March 2024, the Federal Court of Australia handed down its decision in a general protections dismissal claim dealing with additional claims pursued by a former employee for inter alia compensation for breaches of the Fair Work Act 2009 (Cth) (FW Act ) in relation to other statutory entitlements including to be paid out accrued annual leave. In Dorsch v HEAD Oceania Pty Ltd (2024), the employee applicant alleged his employer required him to work unreasonable additional hours (between 30 and 40 a week beyond 38 hours) without adequate compensation or consideration for his health and personal circumstances.

 

The case highlights the issues involved in claims where the employee is claiming that they are required to work additional hours.

 

The FW Act provides that an employer must not request or require a full-time employee to work more than 38 hours per week unless the additional hours are reasonable. An employee is entitled to refuse to work additional hours if they are unreasonable.

 

Importantly, the FW Act does not prescribe an outer limit to the number of hours that an employee may be required to work. Rather, it mandates that any hours worked in addition to 38 hours per week are reasonable.

 

Reasonableness is to be ascertained in context, on a case-by-case basis.

 

Factors considered when determining whether additional hours are “reasonable” include:

 

• any risk to employee's health and safety from working those additional hours;

 

• the employee’s personal circumstances, including family responsibilities;

 

• the nature of the employee’s role; and

 

• the employee’s level of responsibility.

 

The applicant in this case was the most senior employee of the employer in Australia, who had significant autonomy in managing his workload and working hours. There was no one more senior than him in Australia with power to set the terms and conditions of his employment.

 

The Court dismissed the claim, ruling that the employee applicant had not provided sufficient evidence with the requisite precision to prove that his employer required him to work beyond his stipulated hours.

 

The employee’s claims of excessive work hours were not adequately substantiated with evidence of specific dates or periods during which he purportedly worked 70–80 hours per week. Additionally, the evidence regarding his extensive travel for work was insufficient to support his claim of excessive workload, with no detailed evidence to explain the travel nor the consequence on his working hours.

 

The Court also provided some guidance about when hours worked outside ordinary working hours can be said to be ‘required’ by the employer. A requirement to work additional hours does not necessarily need an explicit communication to that effect from the employer. Rather, it can be inferred from the circumstances, including the nature of the work and the employee's level of autonomy.

 

In summary, the Court held that it was not satisfied that Mr Dorsch has proven any of his claims except the claim under section 90(2) of the FW Act and the associated contractual claim that he was not paid his annual leave in full when the employment ended, for which the Court awarded $10,000 of general compensation. The matter was further adjourned to make the necessary declaratory and compensatory orders. 

 

This case should be considered in light of the new "right to disconnect" laws recently introduced as part of the second tranche of the "Closing Loopholes" reforms. The right to disconnect permits an employee to switch off and refuse to respond to contact or attempted contact from their employer (or a third party like a client) where the contact or attempted contact relates to work outside their working hours, unless the refusal is "unreasonable". It was varied from the original proposal which would have seen employers banned from making contact with employees outside their usual working hours. Employees can exercise this right from 26 August 2024 (small business employers are exempt from the operation of the provisions for 12 months following their commencement, that is until 26 August 2025).

 

The test adopted in Dorsch may assist in helping to decide what is reasonable in the circumstances.